Karim v Minister for Immigration & Border Protection

[2014] FCCA 1577

FEDERAL CIRCUIT COURT OF AUSTRALIA

KARIM & ANOR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1577

Catchwords:
MIGRATION – Migration Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Regulations 1994 (Cth) cl.572.211
Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13

First Applicant:

Second Applicant:

KARIN KARIM

BHUPINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 866 of 2014

Judgment of: Judge Emmett

Hearing date: 21 July 2014

Date of Last Submission: 21 July 2014

Delivered at: Sydney

Delivered on: 21 July 2014

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter

Solicitor for the Respondents: Ms Brooke Griffin
(Australian Government Solicitors)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 866 of 2014

KARIN KARIM

First Applicant

BHUPINDER SINGH
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application by the applicant pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), for an order requiring the respondent to show cause why the Court should not grant the relief sought in the application filed on 31 March 2014.

2. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a)  if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b)  if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

3. Relevantly, r.44.13 provides:

   “(1)  At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

The proceeding before this Court

1. The applicant was unrepresented before the Court this morning, although had the assistance of an Urdu interpreter. The second applicant is the husband of the first applicant (“the Applicant”) and is wholly reliant on the Applicant’s claims.

2. On 1 July 2014, the applicants attended a directions hearing before me. I explained to the applicants that this Court has no power to interfere with the decision of the Migration Review Tribunal (“the MRT”), unless the Court is satisfied that the MRT’s decision is affected by a mistake going to the jurisdiction of the MRT. I also explained to the applicants that the grounds of the application made bare assertions and did not by themselves disclose an error capable of review by this Court.

3. I also explained to the applicants that in circumstances where the grounds of the application did not raise an arguable case for the relief claimed, the application may be dismissed pursuant to the Rules.

4. At the directions hearing, the applicants were provided with a copy of the applicable costs schedule of the Court and I explained to the applicants the consequences that may flow to them if a costs order was made against them. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicants’ ability to obtain any other type of visa or re-enter Australia may be significantly affected.

5. The Applicant confirmed that she wished to continue with the application for judicial review of the MRT’s decision. The applicants were given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, by 15 July 2014. The applicants were also directed to file and serve written submissions in support of the grounds of his application by 15 July 2014.

6. At the directions hearing, the applicants were provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language, should she seek legal advice.

7. The matter was listed for today for a hearing pursuant to r.44.12 of the Rules, a copy of which was given to the applicant.

8. On 14 July 2014, the applicant filed a submission which expanded on her explanation as to what happened when the second applicant went to lodge her student visa application with the Department on 22 May 2013. 

9. I accept as accurate the first respondent’s summary of the MRT’s decision, as follows:

   “BACKGROUND

   3. The primary applicant (first applicant) and her husband (second applicant), held student visas that expired on 24 April 2013. The applicants lodged an application for further student visas (subclass 572) on 24 May 2013: Tribunal’s decision at [2] and [9].

   4. The delegate refused to grant the visas on 29 May 2013 on the basis that cl 572.211 of sch 2 to the Migration Regulations 1994 (Regulations) was not satisfied, namely that the application was not made within 28 days of the last substantive visa ceasing, as required by cl 572.211(3)(c). The applicants subsequently applied to the Tribunal for review of the delegate’s decision: at [4].

   BEFORE THE TRIBUNAL

   5. The Tribunal received a submission from the applicants’ agent claiming that, when the second applicant tried to lodge the visa application on 22 May 2013, he was told by the counter officer that he could lodge it later because he held a Bridging visa A in relation to another visa application, which gave him more time to apply: at [5]. The second applicant also claimed that he did not understand what the Department counter officer was saying, so he telephoned Unique International College who interpreted what the Department officer said. According to the second applicant, he was told it was unlawful to accept the application over the counter and it should be sent by post: at [5] - [6]. 

   6. The applicants and their migration agent attended a Tribunal hearing on 18 March 2014. When asked why he did not insist on the application being taken by the Department on 22 May 2013, the second applicant claimed that the office was about to close, the person serving on the counter was not interested in taking the application, and he was told to come back later. The Tribunal explained to the applicants that whatever the circumstances that led to the late lodgement of the application, it did not have discretion to vary the requirements, and it was the applicants’ responsibility to ensure that they satisfied those requirements: at [6].

   7. On 19 March 2014, the Tribunal affirmed the decision under review. The Tribunal found that the application was not made within 28 days after the last substantive visa ceased to be in effect. Accordingly, the applicants did not satisfy cl 572.211(3)(c) and therefore did not meet the requirements for the grant of the visa, or any other Class TU visa: at [10]-[14].”

10. The Applicant confirmed that she relied on the grounds of her application for judicial review, filed on 31 March 2014, as follows:

    “1. The MRT made a procedural mistake in not taking into consideration vital information provided by the applicants

    Particulars:

    The applicants provided detailed information as to why their applications could not comply with cl.572.211. Evidence was provided that the delay in lodging the application occurred due to the fault of the Department of Immigration.

    2. By not taking into account vital information relevant to the applicants’ case, the applicants suffered injustice.

    Particulars:

    The applicants could not lodge their application on time as required by cl.572.211 due to the fault of a third party, namely, an officer of the Department of Immigration who refused to accept the application which was presented on 22 May 2013. The applicants state that if the said officer accepted their application on 22 May 2013, the applicants would have complied with cl.572.211”

11. The grounds of the application were interpreted for the Applicant and the Applicant was invited to make submissions in support of the grounds.

12. The Applicant said no more than that the grounds were correct.

13. The RRT’s decision record states that it does not have a discretion to vary requirements that are mandatory criteria in respect of the applicant’s visa.

14. Relevantly, cl.572.211 to Schedule 2 of the Migration Regulations 1994 (“the Regulations”) requires that if the visa application is made in Australia then the applicant is to be the holder of a substantive visa or has made the visa application within 28 days of the last substantive visa ceasing.

15. In the matter before this Court, the visa application was made in Australia and the MRT found that the Applicant did not hold a substantive visa of a type specified in the criteria. The MRT found that the last substantive visa held by the Applicant that met the requirements of cl.572.211(3)(b) of the Regulations was a student visa. However that visa ceased on 24 April 2013.

16. The Applicant lodged the current visa application on 24 May 2013, one day after the expiration of the stipulated 28-day period in cl.572.211(3)(c) of the Regulations.

17. The MRT found that the application was not made within 28 days after the last substantive visa ceased to be in effect and that, accordingly, the Applicant does not meet cl.572.211(3)(c) of the Regulations and therefore does not meet the requirements of cl.572.211 of the Regulations.

18. In the circumstances, the MRT affirmed the decision under review.

19. The MRT’s findings would appear to be open to it on the evidence and material before it and for the reasons it gave.

20. While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, none is apparent on the face of the decision record. The RRT referred to the relevant law and affirmed the decision under review. There appears to be nothing on the face of the decision record to suggest that those findings were not open to the RRT on the evidence and material before it and for the reasons it gave.

21. The Applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error on the part of the RRT.

22. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, the proceeding before this Court, commenced by way of application on 31 March 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:    24 July 2014